Citation Nr: 1600564
Decision Date: 01/07/16 Archive Date: 01/21/16
DOCKET NO. 04-36 330 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of service connection for myositis of the right leg/knee, including as secondary to service-connected bilateral pes planus.
2. Entitlement to service connection for myositis of the right leg/knee, including as secondary to service-connected bilateral pes planus.
3. Whether new and material evidence has been received to reopen a claim of service connection for right ankle disorder, including as secondary to service-connected bilateral pes planus.
4. Entitlement to service connection for right ankle disorder, including as secondary to service-connected bilateral pes planus.
5. Whether new and material evidence has been received to reopen a claim of service connection for bilateral knee disorder, including as secondary to service-connected bilateral pes planus.
6. Entitlement to service connection for bilateral knee disorder, including as secondary to service-connected bilateral pes planus.
7. Whether new and material evidence has been received to reopen a claim of service connection for compensation purposes for a dental disorder.
8. Entitlement to service connection for a dental disorder for compensation purposes.
9. Whether new and material evidence has been received to reopen a claim for service connection for fungus of the scrotum.
10. Entitlement to service connection for a low back disability, including as secondary to service-connected bilateral pes planus.
11. Entitlement to a compensable disability rating for a hernioplasty scar.
12. Entitlement to a disability rating greater than 10 percent prior to July 31, 2002, greater than 30 percent from July 31, 2002, to May 11, 2011, and greater than 50 percent thereafter, for bilateral pes planus.
13. Entitlement to an earlier effective date than June 1, 1987, for a grant of service connection for bilateral pes planus.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady, Attorney at Law
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
J.N. Moats, Counsel
INTRODUCTION
The Veteran had active service from December 1952 to November 1954.
This case has a long and complicated procedural history. This matter comes before the Board of Veterans' Appeals (Board) on appeal from several rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Given the complicated procedural history of the Veteran's currently appealed claims, the Board will address each claim in turn in this Introduction.
The Veteran's claims to reopen the previously denied claims for service connection for myositis of the right leg/knee, right ankle disorder, bilateral knee disorder, and a dental disorder come to the Board on appeal from a March 2011 rating decision. The Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claims has been received and, in view of the Board's favorable decision on these requests to reopen, the Board has characterized these issues as encompassing both the claims to reopen as well as the claims for entitlement to service connection on the merits as set forth on the front page of this decision. The March 2011 rating decision also denied the Veteran's request to reopen a claim for service connection for fungus of the scrotum. As discussed further below, the Veteran submitted a notice of disagreement to this decision in June 2011, but the RO has not issued a statement of the case.
This matter is also on appeal from an October 2009 rating decision which denied the Veteran's claims to reopen the issue of service connection for a low back disorder as well as entitlement to a compensable disability rating for a hernioplasty scar.
Moreover, in a March 2004 rating decision, the RO granted service connection for pes planus with mild degenerative changes at the first metatarsophalangeal (MTP) joint of the right foot, assigning a 10 percent rating effective July 31, 2002, and for pes planus with mild degenerative changes at the first MTP joint of the left foot, assigning a 10 percent rating effective July 31, 2002. After the Veteran perfected a timely appeal on these claims, in an April 2008 decision, the Board recharacterized the issues on appeal as entitlement to an increased rating for bilateral pes planus, currently rated as 10 percent disabling for the right foot and as 10 percent disabling for the left foot, and entitlement to a separate compensable rating for mild degenerative changes at the first MTP joint of the right and left foot. The Board also denied the Veteran's increased rating claim for bilateral pes planus, evaluated as 10 percent disabling in each of his feet, and granted separate 10 percent ratings for mild degenerative changes at the first MTP joint of the right and left foot.
Both the Veteran, through his attorney, and VA's Office of General Counsel appealed the Board's April 2008 decision to the Court by filing a Joint Motion for Remand (Joint Motion). Both parties noted in the Joint Motion that they were appealing only the Board's denial of an increased rating claim for bilateral pes planus and not the assignment of separate 10 percent ratings for mild degenerative changes at the first MTP of the right and left foot. The United States of Appeals for Veterans Claims (Court) granted the Joint Motion in February 2010.
In October 2010, the Board remanded the Veteran's increased rating claim for bilateral pes planus, currently rated as 10 percent disabling for the right foot and as 10 percent disabling for the left foot, to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development.
In a September 2011 rating decision, the RO increased the bilateral pes planus disability rating to 30 percent, effective July 31, 2002 and to 50 percent, effective May 11, 2011. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet.App. 35, 39 (1993). The issue therefore remains in appellate status and has been characterized as set forth on the front page of this decision.
The March 2011 rating decision also denied the Veteran's claim of entitlement to an earlier effective date than June 1, 1987, for the grant of service connection for bilateral pes planus. The Board is cognizant of the Court's holding in Rudd v. Nicholson, 20 Vet. App. 296 (2006), in which it was determined that, once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE). The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding claim is raised, the Court has held that such an appeal should be dismissed. Id. at 299-300.
In this case, the Board awarded service connection for bilateral pes planus in an August 1990 decision. The RO effectuated such award in a June 1991 rating decision and assigned an effective date of June 29, 1997. (Parenthetically, the Board notes that subsequent rating code sheets indicate that the effective date for service connection was actually June 1, 1987 as set forth on the front page of this decision.) The claims file shows that in June 1992, the Veteran filed a statement seeking "retroactive" payment for his bilateral pes planus as the disorder was shown on his discharge examination. The Board finds that this statement is a timely notice of disagreement to the effective date assigned. Consequently, as the Veteran filed a timely notice of disagreement to the rating action that granted service connection, this matter did not become final with respect to the effective date assigned. In turn, in this case, there is no freestanding claim for an earlier effective date for the award of service connection for bilateral pes planus and the Board may decide the issue on the merits.
In an April 2012 decision, the Board reopened the Veteran's claim for service connection for a low back disability, including as due to service-connected bilateral pes planus, and remanded this issue on the merits as well as the issues of entitlement to increased ratings for a hernioplasty scar and bilateral pes planus and entitlement to an earlier effective date than June 1, 1987, for a grant of service connection for bilateral pes planus.
The Board has sought expert medical opinions from the Veterans Health Administration (VHA). VHA opinions were received in October 2014 and in March 2015. In August 2015, VA provided these opinions to the Veteran and his representative with a 60-day period of time to provide additional evidence and/or argument.
A Board hearing in Washington, D.C. was held in March 2005 before a Veterans Law Judge who subsequently retired from the Board; the hearing transcript is associated with the record. The only issue currently on appeal addressed at this Board hearing was entitlement to increased rating for pes planus with degenerative changes of the left foot and the right foot. (Parenthetically, the Board notes that the hearing testimony also discussed the issue of service connection for a low back disability. However, the Board subsequently denied this issue in a February 2007 decision that became final with respect to this matter.) As the Board noted in April 2008, the Veteran declined a new hearing before a different Veterans Law Judge in February 2008 correspondence. See 38 U.S.C.A. § 7107; 38 C.F.R. § 20.707.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014).
Additional evidence has been submitted by the Veteran since the RO last considered the case in a November 2014 supplemental statement of the case. Nevertheless, this evidence is duplicative of evidence already in the claims file and thus, waiver of RO consideration of this evidence is not necessary. 38 C.F.R. § 20.1304(c).
As a final preliminary matter, the Board notes that, in addition to the paper claims file, there are paperless, electronic Virtual VA and Veterans Benefit Management System claims folders associated with the Veteran's appeal. A review of these records shows that the documents are either duplicative of record already in the paper claim files or irrelevant to the issues on appeal.
The reopened claim of service connection for a dental disorder for compensation purposes on the merits and the issue of whether new and material evidence had been received to reopen a claim for service connection for fungus of the scrotum are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. In a December 1993 rating decision, the RO denied a claim to reopen for service connection for myositis of the right leg/knee because new and material evidence had not been submitted; the Veteran filed a notice of disagreement to this determination in February 1994, the RO issued a statement of the case in May 1994 and the Veteran filed a substantive appeal in June 1994; however, the Veteran withdrew his appeal and the Board dismissed this issue in a May 2002 decision.
2. The additional evidence received since the May 1994 statement of the case issued in conjunction with the prior appeal of the December 1993 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for myositis of the right leg/knee.
3. Myositis of the right leg/knee is not shown to be causally or etiologically related to any disease, injury, or incident in service, and is not proximately due to or aggravated by the Veteran's service-connected bilateral pes planus.
4. In a December 1993 rating decision, the RO denied a claim to reopen for service connection for right ankle disorder because new and material evidence had not been submitted; the Veteran filed a notice of disagreement to this determination in February 1994, the RO issued a statement of the case in May 1994 and the Veteran filed a substantive appeal in June 1994; however, the Veteran withdrew his appeal and the Board dismissed this issue in a May 2002 decision.
5. The additional evidence received since the May 1994 statement of the case issued in conjunction with the prior appeal of the December 1993 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for right ankle disorder.
6. Right ankle disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and is not proximately due to or aggravated by the Veteran's service-connected bilateral pes planus.
7. In a December 1993 rating decision, the RO denied a claim to reopen for service connection for bilateral knee disorder because new and material evidence had not been submitted; the Veteran filed a notice of disagreement to this determination in February 1994, the RO issued a statement of the case in May 1994 and the Veteran filed a substantive appeal in June 1994; however, the Veteran withdrew his appeal and the Board dismissed this issue in a May 2002 decision.
8. The additional evidence received since the May 1994 statement of the case issued in conjunction with the prior appeal of the December 1993 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral knee disorder.
9. Bilateral knee disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and is not proximately due to or aggravated by the Veteran's service-connected bilateral pes planus.
10. In a December 1993 rating decision, the RO denied a claim to reopen for service connection for a dental disorder because new and material evidence had not been submitted; the Veteran filed a notice of disagreement to this determination in February 1994, the RO issued a statement of the case in May 1994 and the Veteran filed a substantive appeal in June 1994; however, the Veteran withdrew his appeal and the Board dismissed this issue in a May 2002 decision.
11. The additional evidence received since the May 1994 statement of the case issued in conjunction with the prior appeal of the December 1993 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a dental disorder.
12. A low back disability is not shown to be causally or etiologically related to any disease, injury, or incident in service, and is not proximately due to or aggravated by the Veteran's service-connected bilateral pes planus.
13. For the entire appeal period, the Veteran's service-connected hernioplasty scar has not been productive of any detectable hernias and his bilateral hydrocele is not an associated disorder of the Veteran's umbilical hernia; the residual scar is not painful or unstable or greater than 39 square centimeters.
14. Prior to July 31, 2002, the Veteran's service-connected bilateral pes planus has been productive of moderate pes planus, but has not been manifested by severe bilateral pes planus.
15. From July 31, 2002 to May 11, 2011, the Veteran's service-connected bilateral pes planus has been productive of severe pes planus with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use and characteristic callosities, but has not been manifested by pronounced bilateral pes planus.
16. From May 11, 2011, the Veteran's service-connected bilateral pes planus has been manifested by pronounced bilateral pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and inward bowing of the Achilles tendon; orthopedic shoes or appliances have not improved the disability; however, at all times pertinent to the current claim, the schedular criteria have been adequate to evaluate the bilateral foot disability under consideration.
17. The Veteran did not file a formal or informal claim for entitlement to service connection for bilateral pes planus prior to June 1, 1987.
CONCLUSIONS OF LAW
1. The December 1993 rating decision that denied a claim to reopen for service connection for myositis of the right leg/knee is final. 38 U.S.C.A. § 7105(c) (West 2014); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (2015).
2. The additional evidence received since the May 1994 statement of the case issued in conjunction with the appeal of the December 1993 rating decision is new and material, and the claim for service connection for myositis of the right leg/knee is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).
3. The criteria for service connection for myositis of the right leg/knee to include as secondary to bilateral pes planus, have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015).
4. The December 1993 rating decision that denied a claim to reopen for service connection for right ankle disorder is final. 38 U.S.C.A. § 7105(c) (West 2014); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (2015).
5. The additional evidence received since the May 1994 statement of the case issued in conjunction with the appeal of the December 1993 rating decision is new and material, and the claim for service connection for right ankle disorder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).
6. The criteria for service connection for right ankle disorder, to include as secondary to bilateral pes planus, have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015).
7. The December 1993 rating decision that denied a claim to reopen for service connection for bilateral knee disorder is final. 38 U.S.C.A. § 7105(c) (West 2014); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (2015).
8. The additional evidence received since the May 1994 statement of the case issued in conjunction with the appeal of the December 1993 rating decision is new and material, and the claim for service connection for bilateral knee is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).
9. The criteria for service connection for bilateral knee disorder, to include as secondary to bilateral pes planus, have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015).
10. The December 1993 rating decision that denied a claim to reopen for service connection for dental disorder is final. 38 U.S.C.A. § 7105(c) (West 2014); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (2015).
11. The additional evidence received since the May 1994 statement of the case issued in conjunction with the appeal of the December 1993 rating decision is new and material, and the claim for service connection for dental disorder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).
12. The criteria for service connection for a low back disability to include as secondary to bilateral pes planus, have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015).
13. For the entire appeal period, the criteria for a compensable rating for hernioplasty scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.321, Part 4, including §§ 4.7, 4.114, 4.118, Diagnostic Codes 7338, 7804 (2008) (2015).
14. Prior to July 31, 2002, the criteria for a rating in excess of 10 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Code 5276 (2015).
15. From July 31, 2002 to May 11, 2011, the criteria for a rating in excess of 30 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Code 5276 (2015).
16. From May 11, 2011, the criteria for a rating in excess of 50 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Code 5276 (2015).
17. The criteria for assignment of an effective date prior to June 1, 1987, for the grant of service connection for bilateral pes planus, have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VA's Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice,
followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
With respect to the claim for an earlier effective date, the Veteran's appeal arises from disagreement with the effective date assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA with respect to this issue.
As to the remaining issues on appeal, the Veteran was sent letters in February 2007, May 2007, September 2008 and March 2011 that fully addressed all notice elements referable to each claim decided herein. The letters provided information as to what evidence was required to substantiate his increased rating claims as well as his service connection claims on a direct and secondary basis and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also provided notice of the evidence and information necessary to establish an effective date in accordance with Dingess/Hartman, supra. The Board recognizes that subsequent VCAA notices were provided after the initial decisions. However, the deficiency in the timing of these notices was remedied by readjudication of the issues on appeal in subsequent statements of the case and supplemental statements of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, no further development is required with respect to the duty to notify.
Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, post-service reports of private treatment and VA treatment, as well as VA examination reports. Moreover, the Veteran's statements and Board hearing testimony in support of the claims are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims.
Relevant to the Veteran's claim for an earlier effective date, the Board notes that relevant medical evidence was reviewed by the RO in connection with the adjudication of the Veteran's service connection claim. However, pertinent to his effective date claim, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of his original claim for service connection, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already contained in the claims file. There is no outstanding information or evidence that would help substantiate the Veteran's claim. VA's General Counsel has held that in cases where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004).
Additionally, the Veteran was afforded VA examinations in December 2003, April 2010, May 2011 and January 2013 that fully addressed the severity of his service-connected bilateral pes planus and he was most recently afforded a VA examination in January 2013 that addressed his hernioplasty scar and a VHA opinion was obtained in October 2014 to address his claimed bilateral hydrocele. The Board finds that the VA examinations with VHA opinion are adequate because, as discussed below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his bilateral pes planus and hernioplasty scar have materially worsened since the most recent evaluations. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination with respect to these issues.
With respect to the issues pertaining to myositis of the right leg/knee, right ankle disorder, bilateral knee disorder and low back disability, as noted above, the Board obtained an expert medical opinion from the VHA in March 2015. Although the Veteran's representative in a September 2015 statement argued that the VHA opinion was inadequate, the Board finds that the opinion obtained was based upon an accurate review of the factual history as found by the Board, directly answers the questions posed by the Board, and cites to specific findings and rationale to support the conclusions reached. Overall, the Board finds that the VHA opinion comply with the Board's opinion request, and is adequate for appellate review.
Moreover, in March 2005, the Veteran was provided an opportunity to set forth his contentions during a hearing before a Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.
Here, during the March 2005 hearing, the Veterans Law Judge enumerated the issue then on appeal. Specifically, information was solicited regarding the functional impact the Veteran's bilateral pes planus had on his daily life and employment. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the Board has subsequently remanded this issue so that additional medical evidence could be obtained, to include adequate VA examinations. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. Importantly, the Veteran was provided an opportunity to testify at another Board hearing, but he declined. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record.
Finally, the Board finds that there was substantial compliance with the prior remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999).
In sum, the Board's prior remands have directed the AOJ to send VCAA notice, obtain additional VA treatment records and request any information concerning private providers. As noted above, the AOJ has sent VCAA notice on numerous occasions and has satisfied its duty notify. Most recently, the AOJ specifically requested information concerning private providers in May 2012 and updated VA treatment records have also been obtained and associated with the record. The appeal has also been remanded to afford the Veteran with VA examinations pertaining to his bilateral pes planus and hernioplasty scar. As discussed above, the Veteran has been afforded numerous VA examinations over the course of the appeal that are adequate for appellate review. Moreover, as noted above, a VHA opinion to address the issue of service connection for myositis of the right leg/knee, right ankle disorder, bilateral knee disorder and low back disability has been obtained as well. The most recent Board remand also directed the AOJ to issue a statement of the case with respect to the issue of entitlement to an earlier effective date for the award of service connection for bilateral pes planus and such was issued in May 2012. Accordingly, the Board finds that there has been substantial compliance with the prior Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008).
For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).
II. New and Material Evidence
Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a).
If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011).
Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.
New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
In Shade v. Shinseki, 24 Vet. App 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would "force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA."
For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Myositis of the Right Leg/Knee, Right Ankle Disorder and Bilateral Knee Disorder
The present appeal includes the issues of whether new and material evidence has been received to reopen claims for service connection for myositis of the right leg/knee, right ankle disorder and bilateral knee disorder. The RO and the Board has denied these claims numerous times over the years. Most recently, the RO denied the claims in a December 1993 rating decision. The Veteran filed a notice of disagreement to this determination in February 1994, the RO issued a statement of the case in May 1994 and the Veteran filed a substantive appeal in June 1994. However, the Veteran withdrew his appeal of these issues and they were dismissed by the Board in a July 2002 decision. Under these circumstances, the Board must find that the December 1993 rating decision became final with respect to these issues. 38 U.S.C.A. § 7105(c) (West 2014); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (2015).
Importantly, the prior RO and Board decisions have previously denied the Veteran's claim as not being incurred in or directly related to service. Since the May 1994 statement of the case issued in conjunction with the December 1993 rating decision, additional evidence has been associated with the record, including in pertinent part additional statements from the Veteran, additional VA treatment records, medical publications and a March 2015 VHA opinion. VA treatment records document complaints of right ankle and bilateral knee pain.
In his statements of record, the Veteran has asserted that he has an altered gait due to his service-connected pes planus and in turn, these disorders are caused by or aggravated to his service-connected disorder. Importantly, a September 2008 medical publication indicated that moderate and severe pes planus was associated with nearly doubled the rate of anterior knee pain. However, the March 2015 VHA examiner determined that such disorders were not related to service, to include as secondary to pes planus.
The Board concludes that the evidence received since the May 1994 statement of the case issued in conjunction with the December 1993 final RO decision is new in that it was not previously of record. It is material because it relates to unestablished facts necessary to substantiate the Veteran's claims. Specifically, the newly received evidence provides a new theory of entitlement to service connection for myositis of the right leg/knee, right ankle disorder and bilateral knee disorder not previously considered, namely whether such disorders were caused or aggravated by his service-connected bilateral pes planus. As the claims for service connection were previously denied based on the absence of an in-service injury or disease and/or a connection between the current disability and military service, and the newly received evidence addresses a new theory of entitlement based on secondary service connection, thus tending to prove a previously unestablished fact necessary to substantiate the underlying claim and raising a reasonable possibility of substantiating such claim, the Board finds that new and material evidence has been received. Accordingly, the issues of entitlement to service connection for myositis of the right leg/knee, right ankle disorder and bilateral knee disorder are reopened. 38 U.S.C.A. § 5108.
Dental Disorder
The present appeal also includes the issues of whether new and material evidence has been received to reopen a claim for service connection for a dental disorder for compensation purposes. The RO and the Board has also denied this claim numerous times over the years. Most recently, the RO denied the claims in a December 1993 rating decision. The Veteran filed a notice of disagreement to this determination in February 1994, the RO issued a statement of the case in May 1994 and the Veteran filed a substantive appeal in June 1994. However, the Veteran withdrew his appeal of this issue and it was dismissed by the Board in a July 2002 decision. Under these circumstances, the Board must find that the December 1993 rating decision became final with respect to this issue. 38 U.S.C.A. § 7105(c) (West 2014); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (2015).
The Veteran is service-connected for dental treatment purposes due to trauma to teeth 8 and 9. These teeth were replaced with a bridge that spanned teeth 6 through 13. The Board observes that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided in 38 C.F.R. § 17.161. Missing teeth may be compensable for rating purposes under Diagnostic Code 9913 ("loss of teeth, due to loss of substance of body of maxilla or mandible without loss of continuity"). A compensable rating is warranted when the loss of masticatory surface cannot be restored by a suitable prosthesis. However, the note immediately following this code states, "these ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling." 38 C.F.R. § 4.150, Diagnostic Code 9913. Importantly, the prior RO and Board decisions have previously denied the Veteran's claim for compensation as there has been no evidence of loss of body of maxilla or mandible that cannot be restored by a suitable prosthesis warranting a compensable rating.
Since the May 1994 statement of the case issued in conjunction with the December 1993 rating decision, additional evidence has been associated with the record, including in pertinent part additional statements from the Veteran and additional VA treatment records. Additional VA treatment records showed that in April 2002, there was sloughed bone protruding through gingiva and the bone was removed. February 2006, the Veteran was informed that his remaining teeth would need to be extracted and an immediate denture to replace missing teeth. The assessment was severe periodontal disease. In his statements of record, the Veteran has asserted that he had experienced loss of masticatory surface and in turn, he is unable to wear his dentures without severe discomfort.
The Board concludes that the evidence received since the prior final decision is new in that it was not previously of record. It is material because it relates to unestablished facts necessary to substantiate the Veteran's claim. Specifically, the newly received evidence indicates that the Veteran's service-connected teach may have increased in severity to the point of causing bone loss, which proves a previously unestablished fact necessary to substantiate the underlying claim and raising a reasonable possibility of substantiating such claim. Thus, the Board finds that new and material evidence has been received. Accordingly, the issue of entitlement to service connection for a dental disorder for compensation purposes is reopened. 38 U.S.C.A. § 5108.
III. Service Connection for Myositis of the Right Leg/Knee, Right Ankle Disorder, Bilateral Knee Disorder and Low Back Disorder
In light of reopening the claims for service connection for myositis of the right leg/knee, right ankle disorder and bilateral knee disorder, the Board now turns to address these issues on the merits as well as the issue of service connection for a low back disorder. As the same evidence is relevant to all of these issues, the Board has addressed them under the same analysis.
The Veteran has asserted that these disorders are directly related to injuries or incidents during his service. Alternatively, as noted above, he has asserted that they are secondary to his service-connected bilateral pes planus.
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].
Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.
Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, arthritis is an enumerated disease under 38 C.F.R. § 3.309(a) and service connection may be established based on a showing of continuity of symptomatology.
Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
The Veteran has set forth several theories of entitlement for his disorders. In sum, he has asserted his treatment for a rash in May and June 1953 as well as myositis in July 1953 was due to Lyme's disease and/or a parasite infection, and that a lower extremity laceration in November 1953 requiring a tetanus shot has caused arthritis of his joints. He has also asserted that the straining leading to his umbilical hernia in January 1954 in service demonstrated the onset of his low back disability and/or caused his low back disability. He has also claimed that his low back and bilateral leg disabilities were due to injury caused by repeated lifting of heavy mortars as well as cold exposure.
Service treatment records showed that in May and June 1953, the Veteran was treated for a rash. Moreover, a July 1953 record showed treatment for myositis. Further, a November 1953 service treatment record showed treatment with a tetanus shot for a laceration to the lower extremity. Later that year, the Veteran was treated for a sprained right ankle in December. A February 1954 x-ray examination of the right ankle interpreted as showing an accessory ossicle or an old chip fracture, and no observation of dislocation or other fracture. Nevertheless, the Veteran's November 1954 service examination prior to discharge showed that with the exception of pes planus, the Veteran's lower extremities and spine were all clinically evaluated as normal.
Although the Veteran had filed numerous claims for his unrelated dental disorder, he filed his initial claim for service connection for right leg and low back disorders in August 1983, almost 29 years after his discharge from active service. Follow up VA clinical records show complaints of bilateral knee pain, right leg weakness, right ankle pain and low back pain.
Importantly, a January 2002 record reflected that the Veteran's chief complaint of worsening low back pain associated with gait changes brought about by fallen arches. A February 2002 VA clinic record showed an assessment of chronic low back pain likely secondary to plantar fasciitis/pes planus deformity. An April 2002 VA clinic record noted assessments of painful keratosis of the right heel and pes plano valgus, which included treatment with Spenco orthotics and an ankle brace. Another April 2002 VA clinic record reflecting the Veteran's complaint of back pain with over-pronation of his right foot.
In conjunction with a prior claim for service connection, a December 2003 VA examination report indicated that the relationship to back pain to bilateral pes planus was purely speculative. However, a June 2007 VA examination report showed an assessment that the Veteran's pes planus would cause a decrease in shock absorption which combined with his apropulsive gait would yield an increase in weakness and fatigue.
An April 2010 VA podiatry clinic note showed an assessment of "pain ankle post trauma" with a history of right ankle fracture in service per the Veteran noted. A March 2011 VA treatment record indicated that the Veteran's right knee may be going out due to weakness of muscles around the knee and strengthening exercises were recommended. Another November 2011 VA clinic record also showed findings of bilateral pes planus with mild decreased range of motion of the ankles, and opinion that pes planus is not likely to cause the Veteran's back pain. A contemporaneous x-ray showed severe degenerative changes that had progressed since previous December 2009 exam. A February 2012 VA clinic record noted x-ray findings of soft tissue swelling over the right medial malleolus, possibly suggestive of ankle sprain, and an assessment of "pain ankle right post trauma".
The Veteran was afforded a VA examination in February 2013. After reviewing the claims file and examining the Veteran, the examiner opined that the Veteran's lower back pain was less likely than not due to service or service-connected disabilities. The examiner rationalized that the Veteran had documented low back pain during active service 59 years ago due to heavy lifting. There was no evidence of a lumbar spine fracture. However, he was able to work as a barber requiring standing for hours daily in the last 50 years. At his age of 65 and 43 years after discharge in 1997, x-ray of the lumbar spine showed mild degenerative joint disease which could be seen in most patients with similar age. Over the next 14 years, the Veteran's degenerative joint disease of the lumbar spine progressed from mild to severe, which was also seen in normal aging and natural progression of lumbar degeneration. The examiner stated that there was no evidence of support that the Veteran's degenerative condition in his lower back was beyond natural progression.
However, the examiner failed to offer any opinion as to whether any current low back disability had been aggravated beyond the normal progress of the disorder by the Veteran's service-connected pes planus.
A follow up July 2013 VA treatment record again noted chronic right heel pain and the assessment was rule out sprain and chronic ankle pain with spurs.
In support of his claim, the Veteran has submitted numerous medical publications including the following: a definition that myositis may be caused by parasite infection; an article describing people with rigid, high arched cavus feet as having a diminished ability to absorb shock which may result in conditions such as metatarsalgia, heel pain, knee, and low back pain; an article describing pronation as causing a great deal of stress on surrounding ligaments and bones as well the lower leg, knee and hips; an article describing that low back pain can be caused or aggravated by poor body mechanics; and article positing a correlation between pes planus and anterior knee or intermittent low back pain; a newspaper article discussing the potential complications from a tick-borne infection.
As noted above, a VHA opinion by a medical doctor was obtained in March 2015. After reviewing the claims file, the examiner determined that it was very unlikely that the Veteran's right ankle problems, bilateral knee problems or low back problems were directly related to his pes planus deformity. The examiner noted that although the Veteran did suffer an ankle sprain during active duty, his symptoms resolved with conservative treatment and were not present when he was discharged. There is no evidence in the record that the ankle sprain in fact represented a fracture. The fact that he was later found to have an ossicle around his ankle does not strongly suggest that he fractured his ankle in 1953, as such ossicles are relatively common, and are often, if not usually asymptomatic. As to the question of aggravation, the examiner indicated that having a flat foot deformity can aggravate pre-existing ankle conditions, but the timing and onset of the Veteran's ankle symptoms, roughly 30 years after discharge from service makes a direct connection in this case unlikely.
The examiner also observed that there was no evidence in the records that the Veteran's bilateral knee pain was present upon discharge, and again, the first records of this problems being address are after 1980, about 30 years after discharge. Pes planus and degenerative knee conditions can go hand in hand, but it was difficult to imagine a direct link in this case, again based on the long period before knee symptoms became present. As with the right ankle, a pes planus deformity can aggravate a pre-existing degenerative disease of the same knee. However, this case was based on bilateral knee problems and the timing makes drawing a direct connection between the two problems difficult.
The examiner continued that there was no evidence in the records that the Veteran had low back pain during service or at the time of discharge. He had an extensive work-up in the 1980s, which showed multi-level degenerative changes in the lower spine. This finding is very common in the Veteran's age group at the time, and in fact some level of degenerative spine disease could be considered the norm in that age group. As with the right ankle and bilateral knee, pes planus could aggravate a pre-existing low back pain by altering the Veteran's gait. However, the timing of symptom onset is again, by the records, approximately 30 years from when the pes plans was first noted, making a direct link unlikely.
The examiner noted that the one thing that was clear from the records was that the Veteran developed pes planus prior to discharge and he was appropriately service-connected for this problem. The other claims have been brought numerous times and had been rejected. The examiner did not see any new significant information presented in the records to make these claims seem accurate or to recommend overturning prior decisions.
The Board again notes that the VHA examiner considered the Veteran's record and medical history in the report. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, the VHA examiner provided an etiological opinion, complete with the rationale described above. Barr, supra. Although the examiner did not clearly state his finding that the Veteran's disorders were not directly related service, his rationale unequivocally shows that he determined that there was no such nexus. The examiner also clearly determined that such disorders were not proximately due to or aggravated by the Veteran's pes planus. In sum, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Consequently, the Board assigns great probative value to the VHA opinion.
The Board observes that when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).
Initially, the Board must find that, service connection for myositis of the right leg/knee, right ankle disorder, bilateral knee disorder and low back disorder on a direct basis is not warranted. Again, the November 1954 service examination prior to discharge was silent with respect to any abnormalities of the spine and lower extremities with the exception of pes planus. Importantly, the post service medical evidence while showing disorders of the right ankle and right knee are silent with respect to any current findings of myositis of the right leg/knee. In other words, it does not appear that the Veteran has suffered from a separate disability of the right leg/knee described as myositis at any point during the course of the appeal. Moreover, there is no evidence linking any other current disorder of the right ankle and right knee to service. In this regard, the VHA examiner clearly found that the Veteran's right ankle disorder and bilateral knee disorder as well as his low back disorder were not related to service and provided a detailed rationale for this opinion. Moreover, there is no competent medical evidence showing pertinent symptomatology since service. Again, the first post-service evidence of any such disorders was almost 29 years after service. See Walker, supra.
The Board recognizes that lay assertions may serve to support a claim for service connection by demonstrating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, the Veteran is not competent to directly link any current disability to service as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinion of the Veteran is nonprobative evidence and outweighed by the VHA medical opinion. See Davidson, supra; Jandreau, supra.
Nevertheless, the Veteran is competent to report in-service leg and back symptoms, as well as pertinent symptomatology since service. However, the Board finds that the Veteran's current assertions of pertinent symptomology since to not be credible as they are outweighed by the remainder of the evidence of record and were made under circumstances indicating bias or interest. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995).
Significantly, as noted above, the Veteran's discharge examination revealed no such disorders. It would be reasonable to assume that if the Veteran had been experiencing such symptoms during service, it would have been reported by the medical professional rendering the discharge examination. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). The Board finds such evidence, made contemporaneous to service, to be more probative than the Veteran's statements made in connection with his current claim for VA benefits.
Moreover, although the Veteran filed numerous prior claims for his unrelated dental disorder, the Veteran did not file a claim seeking service connection for his leg, ankle, knees and back until August 1983, many years after service. It would be reasonable to assume that if he was in fact experiencing symptoms, he would have reported them at that time when filing service connection for his dental disorder. Moreover, VA treatment records are silent with respect to any complaints of back or lower extremity pain until approximately 1982. Although the Veteran indicated that he injured his back in service when he sought treatment, again, the Veteran's service treatment records are completely silent with respect to any such injury. Further, when he initially sought treatment at the VA for his knees, he was silent with respect to any problems in service. In this regard, an October 1984 record noted right knee pain, but was silent with respect to any link to service, and a June 1986 record shows that the Veteran reported a left knee injury four years prior. Rucker, supra; Williams, supra. Therefore, the Veteran's current statements, made in connection with his pending claim for VA benefits, that he suffered from such disorders since service are inconsistent with the contemporaneous evidence. Accordingly, while his contentions have been carefully considered, neither these contentions nor the clinical record establish pertinent symptomatology. See Walker.
The Board is cognizant that, while the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a claimant's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board, however, finds in the instant case that the combination of the Veteran's discharge examination with no mention of any abnormalities and the fact that he was silent with respect to any problems until over 29 years after service to be persuasive evidence against his claim.
The Board now turns to whether the claim may be allowed on a secondary basis.
On this question, the VHA examiner clearly found that the Veteran's right ankle disorder, bilateral knee disorder and low back disorder were not caused or aggravated by his service-connected bilateral pes planus. As discussed above, the Board finds the VHA opinion to be sufficient for appellate review and of high probative value. While VA clinical records at times suggested a possible relationship between the Veteran's ankle pain and pes planus, these records were not supported by any rationale and in turn, are outweighed by the VHA opinion. In sum, no other probative evidence of record refutes the examiner's opinion.
Again, the Board has also considered the Veteran's statements that he believes his myositis of the right leg, right ankle disorder, bilateral knee disorder and low back disability are due to his service-connected bilateral pes planus. However, again, given that the Veteran does not have any special medical expertise, the Board must find that he is not competent to give such a medical opinion. See Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Thus, based on the highly probative VHA opinion, service connection is also not warranted on a secondary basis.
In conclusion, based on the analysis above, the preponderance of the evidence is against the Veteran's claims for service connection for myositis of the right leg/knee, right ankle disorder, bilateral knee disorder and low back disability, on a direct and secondary basis. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b).
IV. Increased Rating Claims
Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). As with the claim for an increased rating for pes planus, separate ratings for distinct periods of time, based on the facts are for consideration. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).
Hernioplasty Scar
The Veteran's hernioplasty scar has been rated as noncompensable under of 38 C.F.R. § 4.114, Diagnostic Code 7338 for an inguinal hernia. Under this code, a 10 percent is warranted when the hernia is postoperative recurrent, readily reducible and well supported by truss or belt and a noncompensable evaluation is warranted when not operated, but remedial; or small, reducible, or without true hernia protrusion; a 30 percent is allowed when the hernia is small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible and a maximum 60 percent rating for a hernia that is large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, when considered inoperable.
A note under the diagnostic code shows that 10 percent is added for bilateral involvement, provided the second hernia is compensable. This means that the more severely disabling hernia is to be evaluated, and 10 percent, only, added for the second hernia, if the latter is of compensable degree.
As the Veteran's primary disability is a surgical scar, for purposes of this analysis, the Board notes that during the course of the appeal, effective October 23, 2008, and VA amended criteria for rating the skin so that it more clearly reflects VA's policies concerning the evaluation of scars. Specifically, these amendments concern 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. This amendment applies to all applications for benefits received by VA on or after October 23, 2008. See Notice, 73 Fed. Reg. 54,708 (September 23, 2008). Nevertheless, even though the Veteran's claim was received prior to this date, it appears that the RO has applied these amendments in the January 2010 statement of the case. As such, the Board will consider whether a higher rating is warranted under both the old and new criteria for scars.
Under the previous Diagnostic Code 7804, a scar that is superficial and painful on examination will be assigned a maximum 10 percent rating. With respect to the remaining criteria applicable to scars, under Diagnostic Code 7801, a 10 percent rating is assigned for a scar on other than the head, face or neck, that is deep (associated with underlying soft tissue damage) or that causes limited motion with area or areas exceeding 6 square inches (39 sq. cm.). A 20 percent rating is awarded if the area or areas exceeding 12 square inches (77 sq. cm.); a 30 percent rating is warranted for area or areas exceeding 72 square inches (465 sq. cm.); and a 40 percent rating is warranted for area or areas exceeding 144 square inches (929 sq. cm,).
Under Diagnostic Code 7802, if a scar on other than the head, face or neck is superficial (not associated with soft tissue damage) and does not cause limited motion, a maximum 10 percent rating is assigned if affecting an area or areas of 144 square inches (929 sq. cm.) or greater. A superficial and unstable (involving frequent loss of covering of skin over the scar) scar will be assigned a maximum 10 percent rating under Diagnostic Code 7803. Finally, Diagnostic Code 7805 provides that a scar may also be evaluated based on limitation of function of the affected part.
Under the new criteria, Diagnostic Code 7801 provides for a 20 percent rating when the scar covers an area or areas of 12square inches (77 sq. cm.), but less than 72 square inches (465 sq. cm). Diagnostic Code 7802 provides for a 10 percent rating for scars that are superficial and nonlinear and exceed an area or areas of 144 square inches (929 sq. cm.) or greater. Diagnostic Code 7804 is for application when scars are unstable or painful and provides for a 10 percent rating when there are one or two scars that are unstable or painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Further, Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Lastly, Diagnostic Code 7805 provides any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 should be evaluated under an appropriate diagnostic code.
The Veteran was afforded a March 2011 VA examination to address the severity of his hernioplasty scar. The medical records were reviewed. On physical examination, there no skin breakdown. The scar was not painful and was superficial. The scar had no other disabling effects. It was considered superficial with no inflammation, edema or keloid formation. The scar was 12 centimeters and well-healed. There were no significant effects on occupation. The Veteran reported that he only worked a few hours due as a barber due to chronic back pain.
VA clinical records do not address the severity Veteran's hernia residuals for rating purposes.
Most recently, the Veteran was afforded another VA examination in January 2013. The claims file was reviewed. The examiner observed that the Veteran had a ventral hernia diagnosed in 1954. He also observed that a September 2012 echogram of the scrotum showed bilateral hydroceles. The examiner observed that in 1954, an umbilical hernia was found and the Veteran underwent an open repair. There were no complications and hernia had not recurred. The Veteran reported that occasionally after prolonged standing, or straining to sit up and bend, he will have periumbilical aching of short duration. He did not wear a truss.
On physical examination, no hernia was detected. There was no indication of supporting belt. The examiner found a healed postoperative ventral hernia repair. The Veteran had a surgical scar that was not painful or unstable. The total area was also not greater than 39 square centimeters. However, the examiner also indicated that the Veteran had bilateral large scrotal hydroceles related to his hernia condition. The examiner also found that the Veteran's hernia condition did not impact his ability to work.
In light of the VA examination findings indicating a possible relationship between the Veteran's hernioplasty scar and bilateral hydroceles, the Board obtained a VHA opinion in October 2014. After reviewing the claims file, the examiner determined that it was highly unlikely that the Veteran's bilateral hydroceles had its onset in service or was a result of any service-connected injury. The examiner found that it was impossible that the Veteran's bilateral hydroceles were caused by an umbilical hernia or the treatment thereof, service connected or otherwise. Moreover, as there was no relationship between the Veteran's bilateral hydroceles and the umbilical hernia, it was not possible that the hydroceles were aggravated by service-connected residual of the umbilical hernia. The examiner disagreed with the January 2013 VA examination as there can be no relationship between umbilical hernia and the subsequent development of hydroceles almost 50 years later. The examiner rejected the concept that the Veteran's allegation of chronic scrotal pain is service-connected.
The VHA examiner rationalized that there was no anatomic relationship between the umbilicus and its subsequent umbilical herniorrhaphy and the scrotum. Moreover, the hydroceles were not diagnosed until almost 50 years after the umbilical herniorrhaphy. Further, there was no confirmed documentation of the left quadrant pain and hemoptysis was caused by the treated umbilical hernia. The examiner noted that it was hypothesized that the Veteran's pain could be from adhesions. However, this was very uncommon after an umbilical herniorrhaphy. The examiner continued that even if the hypotheses of adhesions was accepted as a cause of abdominal pain, adhesions could not be etiology of hydrocele. Hemoptysis would be unrelated to an umbilical hernia or adhesions from any cause, and unless a patient had systemic disease, unrelated to abdominal pain. The examiner addressed all the medical evidence pertaining to adhesions and umbilical hernia as possible etiology for the Veteran's bilateral hydroceles, but found that all of the scenarios were not possible or improbable as adhesive bands following umbilical herniorrhaphy were unusual and could not possibly cause hydrocele.
Initially, the Board observes that the VHA examiner considered the Veteran's record and medical history in the report. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, the VHA examiner provided an etiological opinion, complete with the rationale described above. Barr, supra. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Consequently, as the January 2013 VA examiner offered no rationale for finding a relationship between the Veteran's bilateral hydroceles and his hernia, the Board assigns greater probative value to the VHA opinion. In turn, as the Veteran's bilateral hydrocele are not associated with his service-connected hernioplasty scar, a separate or higher rating for this disorder is not warranted.
Moreover, based on the evidence of record, the Board finds that the Veteran does not currently suffer from any residuals from his hernia. The VA examinations document a scar as discussed above, but no other residual disability. There has been no need for a truss or belt and no hernia protrusion. The medical findings correspond to the criteria for noncompensable evaluations using the criteria of Diagnostic Codes 7338 or 7339. The results are not supportive of the criteria for the minimal compensable evaluation (10 percent) under Diagnostic Code 7338, as there is no indication the hernia is of such severity as to be reduced or supported by a truss or belt. Further, a 20 percent evaluation under Diagnostic Code 7339 is not warranted because there is no evidence of a small postoperative ventral (or other hernia) hernia, not well supported by belt under ordinary conditions, or healed ventral hernia or post-operative wounds with weakening of abdominal wall and indication for a supporting belt. Again, at the January 2013 examination, no hernia was detected and no indication of the for a truss or belt.
Moreover, the Board finds that a higher rating is not warranted under both the old and new criteria for scars. Initially, a compensable rating under both the old and new Diagnostic Code 7804 is not warranted as the Veteran's scar has not been found to be painful or unstable. Again, both VA examiners clearly found that the Veteran's scar was not painful or unstable.
Further, a higher rating under the prior Diagnostic Code 7801 is not for application because the medical evidence of record does not show that the Veteran's scar exceeds an area of 6 square inches in order to warrant a 10 percent rating. The previous Diagnostic Codes 7802 and 7803 are not for application as the scar does not excess an area of 144 square inches and is not unstable. Moreover, the new Diagnostic Codes 7800, 7801 and 7802 are not for application as the Veteran's scar is not located on the head, face or neck or a burn scar. Thus, a higher rating is not available under the previous or new diagnostic codes pertaining to scars. Moreover, the January 2013 examiner also found that there was no additional functional impairment to warrant evaluation of limitation of function under the old and new Diagnostic Code 7805.
The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his hernioplasty scar. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Nevertheless, the Board finds that the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.
The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected hernioplasty scar; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted.
In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for hernioplasty scar for the appeal period. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.
Bilateral Pes Planus
The present appeal includes the issue of entitlement to an increased rating for the Veteran's service-connected bilateral pes planus. As noted above, the RO assigned a 10 rating for pes planus prior to July 31, 2002, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276. In November 2011, the RO awarded a 30 percent rating, effective July 31, 2002 and a maximum 50 percent rating with an effective date of May 11, 2011 under Diagnostic Code 5276.
Pursuant to Diagnostic Code 5276, for a bilateral disability, a 10 percent rating is assigned for moderate symptoms of pes planus, to include weight-bearing line over or medial to the great toe, inward bowing of the tendo Achillis, and pain on manipulation and use of the feet. A 30 percent rating is assigned for severe bilateral pes planus and requires objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, an indication of swelling on use, and characteristic callosities. A maximum 50 percent rating is assigned for pronounced bilateral pes planus and requires marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, and the disability is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Severe and pronounced pes planus are provided with separate ratings for unilateral or bilateral disabilities. Id.
The criteria in Diagnostic Code 5276 are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Compare Johnson v. Brown, 7 Vet. App. 9 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). See also Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that 38 C.F.R. § 4.7 is not applicable when the ratings criteria are successive and not variable).
Diagnostic Code 5280 provides for a 10 percent disability rating for unilateral hallux valgus with resection of the metatarsal head, or severe enough to be equivalent of amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280. Diagnostic Code 5281 provides that hallux rigidus is to be rated under the criteria for hallux valgus. 38 C.F.R. § 4.71a, Diagnostic Code 5280.
Diagnostic Code 5283 provides for a 10 percent disability rating for hammertoes of all toes. 38 C.F.R. § 4.71a, Diagnostic Code 5283.
Diagnostic Code 5284 for foot injuries provides for a 10 percent rating for a moderate foot disability, a 20 percent rating for moderately severe foot disability, and the maximum 30 percent rating for severe foot disability. A 40 percent rating is assigned for actual loss of use of the foot. See 38 C.F.R. § 4.71a , at Diagnostic Code 5284, Note.
The diagnostic codes pertaining to weak foot, claw foot, metatarsalgia or malunion or nonunion of the tarsal or metatarsal bones are not applicable in this case as there are no observations or diagnoses of such. 38 C.F.R. § 4.71a, Diagnostic Codes 5277-79, 5283 (2015).
The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2011); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996).
Notably, pain, alone, does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).
Prior to July 31, 2002
The Board now turns to whether a rating in excess of 10 percent is warranted prior to July 31, 2002. In this regard, the Veteran was afforded a VA examination in July 1997. The Veteran reported increasing arch pain, primarily when he stood. However, on examination, his gait and function were normal. He did have hammering on the lateral four toes of both feet.
Follow up VA treatment records continued to show complaints of foot pain and a showing of fallen arches in January 2002 as well as the development of calluses. An April 2002 record showed complaints of overpronation. The assessment was painful keratosis on right heel, which was debrided.
In a May 2002 decision, the Board referred back the issue of entitlement to an increased rating for pes planus as it was raised at the January 2002 Board hearing. On July 31, 2002, the Veteran also filed a claim for an increase.
Based on the evidence above, the Board finds that a disability rating in excess of 10 percent prior to July 31, 2002 is not warranted under Diagnostic Code 5276. In this regard, although there was a complaint of overpronation and documentation of calluses, there had been no objective finding of marked deformity, pain on manipulations and use accentuated or indication of swelling on use that could be characterized as severe to warrant a higher rating during this period. The Board again notes that the rating criteria under this code is conjunctive as it uses the word "and," which means that all the criteria must be met to award a higher rating. See Melson v. Derwinski, 1 Vet.App. 334 (June 1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet.App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. In sum, the objective evidence does not support a finding that the bilateral pes planus meets all of the objective criteria of severe to warrant a higher rating during this period. The Veteran's bilateral pes planus was equivalent to the criteria for moderate flatfoot disability which warranted a 10 percent rating prior to July 21, 2002.
Moreover, although the July 1997 VA examiner did note hammering of the toes, he did not indicate that it affected all the toes to warrant a separate compensable rating under Diagnostic Code 5282 during this period. Additionally, the record was silent with respect to any hallux rigidus or hallux valgus during this period. The medical evidence of record also does not show that the Veteran had moderately severe foot injuries or greater to warrant higher evaluations for each foot under Diagnostic Code 5284. In this regard, although foot pain was noted in January 2002, there was no objective evidence of any functional impairment to such an extent to be characterized as moderately-severe. Again, other diagnostic codes pertinent to the foot are not applicable to this analysis. In sum, the symptoms of the Veteran's pes planus were adequately contemplated in the assigned 10 percent rating prior to July 31, 2002, and a higher rating is not warranted.
From July 31, 2002 to May 11, 2011
The Board now turns to whether a rating in excess of 30 percent for the service-connected bilateral pes planus is warranted form July 31, 2002 to May 11, 2011.
In this regard, the Veteran was afforded a VA examination in December 2003. The Veteran reported increasing plantar foot pain. On examination, he claimed tenderness to palpation over the plantar surface of the foot, primarily the right. There was no weakness, fatigability, decreased endurance or incoordination.
The Veteran testified at a Board hearing in March 2005 concerning the severity of his bilateral pes planus. The Veteran reported callouses, problems walking and pronation. He wore out his corrective shoes. He also reported that his feet affected his ability to work.
The Board remanded this case to afford the Veteran another VA examination. The Veteran was afforded a VA examination in June 2007. The examiner observed that there was bowing of the Achilles tendon on weight bearing as well as compensatory pronation. However, the February 2010 Joint Motion determined that the June 2007 VA examination was insufficient for rating purposes as the examiner did not state the severity of the Veteran's plantar fascia or pronation.
Subsequently, the Veteran was afforded another VA examination in April 2010. The Veteran reported that his foot pain had increased in severity over the years. He worked as a barber for 20 hours per week, but it was difficult to perform his job sitting and he was unable to stand for long periods. The Veteran reported arch and heel pain as well as pain in the first metatarsal phalangeal joint. With respect to the right foot, he also reported swelling, stiffness, fatigability and lack of endurance. He was able to stand for 15 to 30 minutes and only able to walk a few yards.
On physical examination, there was evidence of painful motion, swelling, tenderness and abnormal weight bearing, including callosities and unusual shoe wear pattern. Achilles alignment was normal on both feet and there no forefoot malalignment on the left, but it was present on the right. Manipulation was not painful. There was mild pronation on both sides. Varus/valgus angulation was within normal. The location of the weight bearing line was over the great toe. The Veteran walked with an antalgic gait ambulating with a cane. The effect on occupational activities was decreased mobility and pain. However, there was only a moderate effect on chores, shopping and driving and a severe effect and/or prevented exercise. However, there was no effect on the Veteran's other activities of daily living.
VA treatment records during this period continue to show complaints of foot pain and a pes plano valgus deformity.
Based on the evidence above, the Board finds that a disability rating in excess of 30 percent from July 31, 2002 to May 11, 2011 is not warranted under Diagnostic Code 5276. In this regard, there had been no objective finding of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, and that the disability was not improved by orthopedic shoes or appliances to warrant a higher rating during this period. In other words, the Veteran's disability could not be characterized as pronounced during this period. In this regard, the April 2010 VA examiner characterized the Veteran's pronation as mild. Manipulation was not painful and Achilles alignment was normal. The Board again notes that the rating criteria under this code is conjunctive as it uses the word "and," which means that all the criteria must be met to award a higher rating. See Melson v. Derwinski, 1 Vet.App. 334 (June 1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet.App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. In sum, the objective evidence does not support a finding that the bilateral pes planus meets all of the objective criteria of pronounced to warrant a higher rating during this period. The Veteran's bilateral pes planus was equivalent to the criteria for severe flatfoot disability which warranted a 30 percent rating from July 21, 2002 to May 11, 2011.
Moreover, there was no indication of hammer toes of all the toes to warrant a separate compensable rating under Diagnostic Code 5282 during this period. Further, the record was silent with respect to any hallux rigidus or hallux valgus during this period that would be considered severe enough to be equivalent of amputation of the great toe to warrant a separate rating under Diagnostic Code 5280. The medical evidence of record also does not show that the Veteran had moderately severe foot injuries or greater to warrant a higher evaluation under Diagnostic Code 5284. In this regard, the April 2010 only found that the Veteran's disability had a moderate effect on chores, shopping and driving; and no effect on the Veteran's other daily activities. As such, the Veteran's bilateral foot disability cannot be characterized moderately severe foot injuries. Again, other diagnostic codes pertinent to the foot are not applicable to this analysis. In sum, the symptoms of the Veteran's pes planus were adequately contemplated in the assigned 30 percent rating from July 31, 2002 to May 11, 2011, and a higher rating is not warranted.
From May 11, 2011
The Board now turns to whether a rating in excess of 50 percent is warranted form May 11, 2011. The Veteran was afforded a VA examination on May 11, 2011. The claims file was reviewed. The Veteran reported pain, swelling, stiffness, fatigability and lack of endurance. The flare-ups were precipitated by exercise, ambulation and stance and alleviated by rest, removal of shows and getting of the foot. Flare-ups caused a limitation of activity due to pain. The Veteran was unable to stand for more than a few minutes or walk more than a few yards. He used a cane on his right side and wore a knee brace on his right knee.
On physical examination, there was no evidence of swelling weakness or abnormal weight bearing on the left foot, but there was painful motion and tenderness. There was no evidence of weakness or abnormal weight bearing on the right foot, but there was swelling, painful motion and tenderness. The examiner also noted degenerative changes of the first MPJ of both feet with moderate to severe hallux rigidus and limitation of motion. There was tenderness involving the medial band of the plantar fascia, along the medial longitudinal arch and medial process of the calcaneal tuberosity secondary to heel spur syndrome and plantar fasciitis in both feet. There was no clawfoot, malunion or nonunion of the tarsal or metatarsal bones. There was normal non weight bearing on the left, but inward bowing on the right. There was inward bowing of the Achilles tendon on weight bearing on both sides. There was no pain or spasm or manipulation. It was partially correctable on manipulation. On the right, there was forefoot malalignment. There was marked pronation on both sides. The Veteran functioned with an antalgic apropulsive gait.
The examiner found that the Veteran's foot disabilities impacted his occupational activities due to decreased mobility and pain. There was also a severe effect on chores, shopping, traveling, bathing, dressing, toileting, grooming and driving, prevented exercise, sports and recreation. The examiner also proffered an opinion that the clinical examination demonstrated a rapid and severe progression to degenerative joint disease in the first MPG and severe bilateral pes planus.
A November 2011 x-ray of the feet showed bilateral calcaneal spurs and bilateral mild to moderate hallus valgus deformities.
The Veteran was also afforded a VA examination in January 2013. VA treatment records were considered. On objective examination, the examiner noted pain on use of both feet, but there was no pain on manipulation, swelling on use, characteristic calluses or extreme tenderness on the plantar surface. The Veteran's symptoms were also relieved by arch supports. However, the Veteran did have decreased longitudinal arch height on weight-bearing and marked deformity and pronation of both feet. The weight-bearing line did fall over or medial to the great toe. The Veteran also had mild to moderate hallux valgus deformity as well as bilateral calcaneal spurs. There was also inward bowing of the Achilles tendon on both sides. He also had marked inward displacement and severe spasm of the Achilles tendon on manipulation, which was improved by orthopedic shoes or appliances. The Veteran constantly used orthopedic shoes with inserts.
The examiner noted that the Veteran's bilateral flatfoot condition impacted his ability to work because it made it hard for him to stand at his job as a barber. He had to sit down a lot or use a stool to do his barber work.
Based on the pertinent medical evidence, the Board must find that a rating in excess of 50 percent from May 11, 2011 is not warranted. As of this date, the Veteran has been awarded the maximum schedular rating under Diagnostic Code 5276. Moreover, there was no indication of hammer toes of all the toes to warrant a separate compensable rating under Diagnostic Code 5282 during this period. Further, although there is x-ray evidence of hallux valgus, it was characterized as mild to moderate on both feet. As such, a separate rating under Diagnostic Code 5280 is not warranted as the Veteran's hallux valgus was not considered severe to be the equivalent of amputation of the great toe.
The only applicable diagnostic code that allows for a higher rating for foot disorders is Diagnostic Code 5284 for severe foot injuries. Nevertheless, the Board finds that a higher rating is not warranted for either foot. The January 2013 VA examination report does not characterize that the Veteran's bilateral foot disability as "severe" or find such severe functional impairment to warrant a higher rating under this code. Moreover, a higher schedular rating of 40 percent under Diagnostic Code 5284 for loss of use of either foot is not warranted. The Veteran still has had some use of both feet as he has been able to leave the home and remained able to live independently. The Veteran is not bed ridden or wheelchair bound and has not lost the use of either foot. As such, the Board finds that the current severity of the Veteran's disability is adequately contemplated in the current 50 percent rating, and higher scheduler rating is not warranted from May 11, 2011.
Other Considerations for Pes Planus
The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his bilateral pes planus. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Nevertheless, the Board finds that the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms.
The Board has considered whether further staged ratings under Hart, supra, are appropriate for the Veteran's service-connected bilateral pes planus; however, the Board finds that his symptomatology has been adequately compensated throughout the appeal period. Therefore, assigning further staged ratings for such disability is not warranted.
In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for an increased rating for bilateral pes planus. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.
Extraschedular Consideration
Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)).
An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.
If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id.
In this case, the Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected hernioplasty scar with the established criteria found in the rating schedule. The Board finds that the Veteran's scar symptomatology is fully addressed by the rating criteria under which such disability is rated. In sum, the Veteran's symptoms, and their resulting impairment, are contemplated by the rating schedule. In this regard, no residuals with the exception of a scar have been found. Higher ratings are available for objective findings of unstable or painful scars. In sum, there are no additional symptoms of his service-connected hernioplasty scar that are not addressed by the rating schedule.
Likewise, the Board finds that the schedular criteria are adequate to rate the Veteran's bilateral pes planus at all pertinent points. The rating schedule fully contemplates the described bilateral foot symptomatology, including symptoms such as pain, antalgic gait, reduced walking and standing endurance and limitation and prevention of certain activities. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule because the schedule selected for application provides for adjectival categories that can encompass all manifestations including the complete loss of use of the feet.
For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased, or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with reach and overhead activities. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. The Board has applied the principles of in 38 C.F.R. § 4.40 and DeLuca to account for loss of function due to pain. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of this Veteran's functional loss.
Additionally, the Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed.Cir. 2014). In this case, even after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected symptoms that have not been attributed to a specific service-connected conditions. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.
Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disabilities on appeal. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).
TDIU
The Court has also held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in the instant case, the evidence has not shown that his service-connected disorders render him unemployable. The evidence clearly shows that the Veteran's hernioplasty scar does not impact the Veteran's ability to work. Moreover, although the January 2013 VA examiner observed that the Veteran's bilateral foot disability does impact his ability to work, his findings did not show that the functional impact of such disorder would render the Veteran unable to maintain substantially gainful employment. Accordingly, there is no need for further analysis with respect to this matter.
V. Earlier Effective Date for Bilateral Pes Planus
The Veteran contends that he is entitled to an effective date prior to June 1, 1987, for the grant of service connection for bilateral pes planus. Specifically, he asserts that the effective date should be the date after discharge from active service as pes planus was shown on his discharge examination.
The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service.
Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a).
After reviewing the totality of the evidence, the Board finds that VA did not receive an application for compensation benefits prior to the claim submitted in June 1987. The Board has reviewed the claims file, including the VA treatment records, and there is simply no indication on the part of the Veteran of any intent to file a claim for service connection prior to the initial June 1987 claim. While the Veteran filed prior claims for unrelated disorders, nothing in these claims can be construed as a claim for pes planus. Moreover, the Veteran and his representative have also not identified any such claims. In sum, there is no document of record that can be construed as an informal or formal claim for service connection for bilateral pes planus prior to the receipt of the June 1987 claim.
While, under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, the Court has held that this regulation only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Merely seeking treatment does not establish a claim, to include an informal claim, for service connection. Thus, any records of VA treatment for the Veteran's pes planus cannot constitute a claim for service connection.
Based on the analysis above, and after reviewing the totality of the evidence, the Board finds that the RO did not receive an application for compensation benefits prior to the receipt of the Veteran's claim in June 1987. The Board recognizes that the Veteran had been suffering from pes planus prior to the June 1987 claim. However, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999).
Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations, the effective date has been appropriately assigned as the date of claim. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to June 1, 1987, for the grant of service connection bilateral pes planus. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to June 1, 1987 for the award of service connection for such disability. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b).
ORDER
New and material evidence having been received, the claim of entitlement to service connection for myositis of the right leg/knee is reopened; however, service connection for myositis of the right leg/knee is denied.
New and material evidence having been received, the claim of entitlement to service connection for right ankle disorder is reopened; however, service connection for right ankle disorder is denied.
New and material evidence having been received, the claim of entitlement to service connection for bilateral knee disorder is reopened; however, service connection for bilateral knee disorder is denied.
New and material evidence having been received, the claim of entitlement to service connection for compensation purposes for a dental disorder is reopened; the appeal is granted to this extent only.
Service connection for low back disability is denied.
A compensable disability rating for hernioplasty scar is denied.
A rating in excess of 10 percent prior to July 31, 2002, 30 percent from July 31, 2002, to May 11, 2011, and 50 percent thereafter, for bilateral pes planus, is denied.
An effective date prior to June 1, 1987, for the grant of service connection for bilateral pes planus, is denied.
REMAND
In light of reopening the claim for service connection for a dental disorder for compensation purposes, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim for service connection on the merits so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
Given the additional evidence noted above of possible loss of masticatory surface and the Veteran's complaints of problems with his dentures, the Board finds that the Veteran should be afforded a VA dental examination so that a dental expert may review the record to determine whether the dental trauma that occurred in service resulted in the loss of substance of body of maxilla or mandible without the loss of continuity.
Additionally, in light of the need to remand and given that the Veteran receives continuing dental treatment at the VA, additional VA treatment records from July 2013 to the present should be obtained. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992).
As a final matter, in the March 2011 rating decision, the AOJ found that new and material evidence had not been received to reopen a claim for service connection for fungus of the scrotum. In June 2011, the Veteran filed a notice of disagreement to this decision. Thus, the Veteran has expressed a desire to appeal this issue pursuant to 38 C.F.R. § 20.201. However, the AOJ has not issued a statement of the case with respect to this issue. The United States Court of Appeals for Veterans Claims has held that, where the record contains a notice of disagreement as to an issue, but no statement of the case, the issue must be remanded to the AOJ to issue a statement of the case, and to provide the veteran an opportunity to perfect the appeal. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the AOJ should issue a statement of the case with respect to the issue of whether new and material evidence has been received to reopen a claim for service connection for fungus of the scrotum.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. The AOJ should take appropriate action pursuant to 38 C.F.R. § 19.26 (2015), to include furnishing the Veteran and his representative with an appropriate statement of the case with respect to the issue of whether new and material evidence has been received to reopen a claim for service connection for fungus of the scrotum. The Veteran and his representative should be advised of need to file a timely substantive appeal if the Veteran desires to complete an appeal as to this issue.
2. Obtain the Veteran's VA treatment records from July 2013 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).
3. After any additional records are obtained, the Veteran should be scheduled for an appropriate VA medical/dental examination to determine the nature and etiology of the Veteran's dental disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should describe any non-restorable damage related to the Veteran's in-service dental trauma and explain whether any current maxillary or mandible bone loss is considered to be at least as likely as not (a 50 percent probability or higher) related to the service-connected dental trauma. Please also further explain the relationship, if any exists, between the Veteran's disability involving teeth nos. 8 and 9 and the maxillary or mandible bone loss.
A detailed rationale for all opinions expressed should be provided.
4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for a dental disorder for compensation purposes should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.
Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs